Women’s Reproductive Health and the Right to Not Dispense

Allen Langjahr, Esq.Langjahr & Low Sparta, New Jersey

US Pharm. 2018;43(9):34-35.

In late June 2018, the media reported that a pharmacist in Arizona declined to fill a prescription for a female patient based upon personal objections. According to the reporting, the patient was prescribed misoprostol, a medication used in medical abortion. The medication is also prescribed as a standard treatment during miscarriages to help speed the process of expelling nonviable tissue, as an alternative to surgery. As further reported, the pharmacist would not dispense the drug to the patient, who had learned that her baby’s development had stopped.

The media also reported that the chain drugstore where the pharmacist worked had issued corporate policies addressing the above circumstances. Those policies allow a pharmacist to decline filling prescriptions when the practitioner has moral objections to the prescription, but require the pharmacist to refer the prescription to another pharmacist or manager in a timely manner.

Ultimately, the patient received the medication from another pharmacy within the chain drugstore, which apologized to the patient.1

The Regulatory Response

Healthcare provider refusal clauses (or conscience clauses) were enacted following the U.S. Supreme Court’s decision in Roe v. Wade.2 In that decision, the Court ruled that a right to privacy under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution extended to a woman’s decision to have an abortion balanced with the State’s interests in preserving and protecting the health of the pregnant woman and in protecting the potentiality of human life.3

After Roe v. Wade, certain states enacted legislation designed to allow physicians and other direct providers of healthcare to refuse to perform or assist in an abortion and hospitals to refuse to allow abortions on their premises. This issue expanded as pharmacists refused to dispense emergency contraception and other birth-control medications. According to the National Conference of State Legislatures (NCLS), the movement resulted in the conscience clause, which allows pharmacists the right to refuse to provide certain services based upon a violation of personal beliefs or values. Much of the debate pertains to the dispensing of emergency contraception, which is used to prevent a pregnancy and is described by NCLS as a general term for a number of types of birth-control pills to be used within 72 hours of unprotected intercourse. Emergency contraception is distinguished from mifepristone, which is sometimes referred to as nonsurgical abortion or RU-486.4

Evolving Right-to-Dispense Trends

Recent developments indicate that there are at least two evolving trends. In some states, legislation has granted pharmacists the right to refuse to dispense drugs related to contraception on moral grounds. In several states, pharmacy boards have issued guidance that permits a pharmacist to refuse to dispense medication so long as the patient’s access to the medication is protected by “facilitated referrals” for the filling of the prescription. Other states have enacted legislation that requires pharmacies to fill any lawful prescription for birth control, or the pharmacy boards have issued guidance indicating that pharmacists may not refuse to dispense on moral grounds.

For example, in Arizona, Arkansas, Georgia, Idaho, Mississippi, and South Dakota, legislation or regulations permit a pharmacist to refuse to dispense emergency-contraception medication. Colorado, Florida, Idaho, Illinois, Maine, Tennessee, and Washington have enacted refusal clauses, but they do not explicitly refer to pharmacists.5

Timely Access Assured in California

In California, pharmacists generally have a duty to dispense prescription drugs and devices, but they may refuse to dispense a drug or device, including a contraceptive, on ethical, moral, or religious grounds. In those circumstances, the pharmacist must have previously notified the employer in writing of the drug or class of drugs to which the pharmacist objects, and the employer must be able, without undue hardship, to provide a reasonable accommodation of the objection. The employer must establish protocols that ensure that the patient has timely access to the prescribed drug or device.6

In New Jersey, a pharmacy has a duty to fill lawful prescriptions for prescription drugs or devices without undue delay, despite any resulting conflicts experienced by employees due to sincerely held moral, philosophical, or religious beliefs.7

Given the varying regulatory approaches by the states on the provision of pharmacy care, at least with respect to contraception, pharmacists should review the applicable pharmacy-practice acts and other statutes and regulations for guidance. A pharmacist who is considering whether to refuse services for ethical, moral, or religious reasons should carefully review those laws, regulations, and administrative and court rulings. Depending on the state where the pharmacist practices, a refusal to provide services on those grounds may result in judicial and regulatory scrutiny.